Expunging or Sealing a Federal Criminal Record: What Massachusetts Law Can and Cannot Do

Prepared by Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995 | Serpa Law Office, Boston and Quincy

A Massachusetts court can seal or expunge an eligible Massachusetts criminal record. A Massachusetts court cannot seal the record of a federal prosecution or order the FBI to erase a separate federal record. A person whose FBI Identity History Summary still reports a Massachusetts arrest or disposition after state relief may need to verify and correct the FBI file through the federal challenge procedure.

The first step is to identify which record needs attention. A Massachusetts case can produce a state court record, a CORI entry, an FBI entry based on fingerprints and disposition information, and records maintained independently by police or other agencies. A federal prosecution creates a different set of records governed by federal law.

This page explains how the state and federal records differ and what a Massachusetts sealing or expungement order changes. The page also explains how to correct an inaccurate FBI identity history and why federal courts in the First Circuit generally cannot expunge a federal case based only on hardship. The separate page on sealing and expunging a Massachusetts criminal record addresses eligibility for relief under Massachusetts law.

Identify the Record That Needs Attention

Four kinds of records may require separate analysis.

The Massachusetts court and CORI record. Massachusetts courts, the Commissioner of Probation, and state criminal-justice agencies maintain the docket, disposition, and other information that make up a Massachusetts Criminal Offender Record Information report. Massachusetts law governs whether the Massachusetts court and CORI record can be sealed or expunged.

The FBI’s copy of Massachusetts information. The FBI may include in an Identity History Summary the arrest fingerprints and disposition information that Massachusetts submits. Federal law governs the FBI file. A Massachusetts court order does not directly bind the FBI.

The record of a federal criminal case. A federal case can create a United States District Court docket, United States Attorney and investigating-agency files, Bureau of Prisons records, and an FBI entry associated with the federal arrest. Massachusetts sealing and expungement statutes do not apply to the records of a federal case.

Records maintained outside the court and FBI systems. A police department may retain an incident report or investigative file. Massachusetts also maintains a statewide domestic-violence record-keeping system. Each record requires analysis under the law and rules that govern the agency maintaining it.

Stopping a Massachusetts Case Before Arraignment

A private clerk-magistrate hearing can occur before the court issues a criminal complaint. No complaint issues and no arraignment occurs if the clerk-magistrate denies the complaint application. A denied application creates no CORI entry.

An application that begins without an arrest also does not create an FBI criminal-history entry merely because the police requested a complaint or the court scheduled a clerk-magistrate hearing. An FBI criminal-history entry ordinarily depends on the submission of fingerprints and related identifying information.

An arraignment creates a Massachusetts CORI entry. An arraignment does not necessarily create an FBI entry. The federal file depends on whether Massachusetts submitted fingerprints and later disposition information.

A denial at a clerk-magistrate hearing does not erase every other record. The police report and complaint application may remain. The arrest and fingerprint submission may also remain in state and federal systems if police arrested and booked the person before the hearing, even though no complaint ultimately issued.

An FBI File That Contains a Massachusetts Case

A Massachusetts sealing or expungement order changes the covered Massachusetts record. The order does not itself command the FBI to change a separate federal file.

M.G.L. c. 276, § 100T requires Massachusetts to notify the FBI and the United States Department of Justice and request a corresponding federal change for the sealing and expungement orders identified in the following text of the statute.

Upon sealing a record pursuant to section 100A or section 100B or upon receipt of an order of expungement pursuant to section 100F, section 100G, section 100H or section 100K the commissioner of the department shall notify the Federal Bureau of Investigation and the United States Department of Justice of said sealing or expungement and shall request said Federal Bureau of Investigation and the United States Department of Justice seal or expunge the record.

The statute requires a request because a state court does not control a federal agency. Federal regulations provide the mechanism by which the FBI updates information received from a contributing state agency.

Under 28 C.F.R. § 20.37, an agency that contributes criminal-history information to the Interstate Identification Index must keep that information complete, accurate, and current. Massachusetts remains responsible for the Massachusetts information that it supplied. Federal regulations permit the FBI to update its entry to match the contributing agency’s information when Massachusetts officially reports a corrected, sealed, or expunged disposition.

A person should verify the FBI file rather than assume that every state change has already appeared in the federal system.

What Massachusetts Sealing and Expungement Change

Sealing restricts access to the covered Massachusetts record. Sealing does not destroy the record. For Massachusetts employment, housing, and occupational or professional licensing inquiries governed by M.G.L. c. 276, §§ 100A and 100C, a person with a sealed record generally may answer “no record.” Federal forms and other applications may ask different questions and may operate under different law.

Expungement permanently erases or destroys the covered Massachusetts record maintained by the courts and the state, county, and municipal agencies identified in the statute. Expungement does not necessarily destroy information independently maintained by a federal agency, private background-screening company, news organization, or other third party.

The page on Massachusetts sealing and expungement standards explains the waiting periods, statutory exclusions, and differences between conviction sealing, non-conviction sealing, and expungement.

How to Obtain and Correct an FBI Identity History Summary

A person can obtain an FBI Identity History Summary by submitting fingerprints under 28 C.F.R. § 16.32. The summary permits the person to determine whether the FBI file accurately reports a Massachusetts arrest and its final disposition.

A person whose federal file contains inaccurate or incomplete Massachusetts information can use the Identity History Summary Challenge procedure under 28 C.F.R. § 16.34. The regulation states that, after the FBI receives an official communication directly from the contributing agency, the FBI Criminal Justice Information Services Division “will make any changes necessary in accordance with the information supplied by that agency.”

The challenge itself has no fee. Ordering the Identity History Summary and obtaining certified state documents may involve separate charges.

1. Obtain the Federal and State Records

The person should obtain the following.

• The current FBI Identity History Summary.
• A certified copy of the Massachusetts sealing or expungement order.
• The Massachusetts docket and final disposition.
• Any confirmation from the Department of Criminal Justice Information Services or Commissioner of Probation that reflects the state-level change.
• Enough identifying information to match the challenged entry to the arrest and case.

The listed documents allow the FBI and the Massachusetts contributing agency to identify the entry and confirm the correct disposition.

2. Submit the Challenge

The person may submit the challenge electronically through the FBI portal at edo.cjis.gov or by mail to the following address.

FBI Criminal Justice Information Services Division
Attention: Criminal History Analysis Team 1
1000 Custer Hollow Road
Clarksburg, West Virginia 26306

The submission should identify the arrest or disposition that requires correction and include the certified state documents supporting the requested change.

3. Complete Agency Verification

The FBI uses the contributing Massachusetts agency’s response to determine whether the federal entry requires correction. After receiving the necessary verification, the FBI changes the Next Generation Identification record and sends written notice of the result.

The FBI identifies an average processing time of approximately 45 days. Electronic submission may proceed more quickly than a mailed challenge, but the time required depends on how promptly the contributing agency verifies the record.

The same procedure can correct an arrest that appears without a disposition because an acquittal, dismissal, or other final result was never transmitted. A challenge corrects the accuracy of the federal entry. A challenge does not create a federal expungement remedy for an otherwise accurate federal criminal case.

A Massachusetts Court Cannot Seal a Federal Criminal Case

A federal criminal case creates records within the federal court and executive-branch systems. The records of a federal criminal case can include the United States District Court docket, United States Attorney files, investigating-agency files, Bureau of Prisons records, and an FBI identity-history entry based on the federal arrest.

No General Federal Expungement Statute

Congress has not enacted a general federal counterpart to M.G.L. c. 276, § 100A or § 100C. Federal law provides no general waiting period after which a person can seal a federal conviction, dismissal, or acquittal.

The record of an acquittal or dismissal accurately reports that the prosecution ended without a conviction. The federal arrest, docket, and disposition are not automatically erased after an acquittal or dismissal. The availability of the federal records depends on the type of background check and the requester’s lawful access.

The First Circuit Rule Under United States v. Coloian

The controlling First Circuit decision is United States v. Coloian, 480 F.3d 47 (1st Cir. 2007).

A jury acquitted the defendant, an attorney, of federal bribery charges after a four-day trial. Three years later, he asked the federal district court to expunge the case based on the stigma of the charges and the harm to his law practice. The district court concluded that it had authority to consider the request but declined to grant it.

The First Circuit vacated the district court’s decision and directed the district court to dismiss the motion for lack of jurisdiction. Applying Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994), the court held that a federal district court lacks ancillary jurisdiction to expunge an accurate criminal record based solely on equitable considerations.

Under Coloian, hardship, stigma, employment loss, and the passage of time do not give a federal court in the First Circuit jurisdiction to expunge an accurate federal criminal record. The Coloian rule applies even when the prosecution ended in acquittal.

In Coloian, the First Circuit addressed a request based solely on equity. The Coloian decision did not eliminate relief that Congress expressly authorizes. The decision also did not necessarily resolve every claim involving a record produced by an unconstitutional or invalid conviction. The First Circuit discussed claims involving records of unconstitutional or invalid convictions in an earlier decision, Reyes v. Supervisor of the DEA, 834 F.2d 1093, 1098 (1st Cir. 1987). A claim based on an unconstitutional or invalid conviction requires separate analysis and should not be presented as an ordinary hardship petition.

The linked Coloian decision page provides the fuller case history. This page focuses on the practical distinction between correcting an inaccurate FBI entry and trying to expunge an accurate federal case.

A Narrow Statutory Remedy Under 18 U.S.C. § 3607

The Federal First Offender Act, 18 U.S.C. § 3607, provides limited relief for an eligible first-time simple-possession offense under 21 U.S.C. § 844.

A person with no prior drug conviction who is found guilty of simple possession may receive up to one year of probation without entry of judgment. At the end of the probation term, the court must dismiss the proceeding if the person has not violated a condition of probation. Probation without entry of judgment resembles a Massachusetts continuance without a finding, but its terms and consequences depend on federal law.

Section 3607(c) provides an additional expungement procedure when the person was under 21 at the time of the offense. On the person’s application, the court must enter an order expunging the arrest and the related proceeding from official records, apart from a single nonpublic Department of Justice record retained to enforce the statute’s one-time limit. Under the statute, the person is restored to the legal status held before the arrest and may deny the arrest without committing perjury.

Section 3607 applies to a limited offense, age group, and first-offender category. The statute does not create a general federal expungement procedure.

Presidential Pardons

The United States Constitution gives the President authority to pardon federal offenses. The Department of Justice processes applications through the Office of the Pardon Attorney.

Under 28 C.F.R. § 1.2, a person ordinarily should not submit a pardon petition until at least five years after release from confinement or, if the court imposed no prison sentence, at least five years after the conviction.

A pardon does not erase or seal the conviction. The federal record remains and notes the pardon. An applicant still must disclose the conviction when a form asks for it. A full pardon can restore rights and remove some federal disqualifications, but the President retains discretion to grant or deny the request.

Federal Juvenile Records

Federal law protects juvenile delinquency records primarily through confidentiality rather than destruction.

Under 18 U.S.C. § 5038, the government must protect federal juvenile records from unauthorized disclosure. The statute permits disclosure to specified recipients, including courts, treatment agencies, and law-enforcement agencies.

The statute prohibits disclosure in response to an inquiry connected to employment, licensing, bonding, or a civil right or privilege. The agency that answers the inquiry must respond as it would for a person with no record. The statute also restricts publication of the juvenile’s name or image unless the court transfers the case for adult prosecution.

Federal Firearms Eligibility Requires a Separate Analysis

A Massachusetts sealing order does not, by itself, determine federal firearms eligibility. Federal law applies its own definitions to the conviction or court order involved.

18 U.S.C. § 922(g)(9) applies to a conviction that meets the federal definition of a misdemeanor crime of domestic violence in § 921(a)(33). Among other requirements, the definition requires that the person was represented by counsel or knowingly and intelligently waived the right to counsel. For a person who had a right to a jury trial, the definition also requires a jury trial or a knowing and intelligent waiver of that right.

The federal definition excludes a conviction that has been expunged or set aside, or for which the person received a pardon or restoration of civil rights, unless the order, pardon, or restoration expressly continues the firearms prohibition.

Section 921(a)(33)(C) also provides a five-year restoration rule for a single qualifying misdemeanor conviction arising from a dating relationship when no other disqualifier applies. The five years run from the later of the judgment or the completion of any custodial or supervisory sentence. The person must have no subsequent qualifying conviction.

The dating-relationship restoration does not apply when the victim was a current or former spouse, the other parent of the person’s child, or a parent or guardian. The restoration also does not apply when the victim lived with the defendant as a spouse, parent, or guardian, or was similarly situated to a spouse, parent, or guardian.

18 U.S.C. § 922(g)(8) concerns a qualifying protective order rather than a conviction. The prohibition applies when a court entered the order after a hearing of which the person had actual notice and an opportunity to participate.

The order must also restrain the person from harassing, stalking, or threatening an intimate partner or a child of the partner or of the person. An order that restrains other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child also meets the restraint requirement.

Finally, the order must either include a finding that the person presents a credible threat to an intimate partner or child or expressly prohibit qualifying physical force. The federal prohibition remains in effect while the qualifying order remains in force.

A state sealing order does not necessarily remove the underlying information from every record available during a federal firearms background check. The separate page on Massachusetts firearms charges and possession law addresses the state and federal firearms analysis in greater detail.

Immigration, Professional Licensing, and Domestic-Violence Records

Massachusetts sealing does not determine whether federal immigration law treats a disposition as a conviction. Massachusetts sealing also does not control what an immigration form asks or what records federal authorities may obtain. A noncitizen should obtain advice about the specific disposition and application before relying on sealing or expungement.

A fingerprint-based professional background check may include an FBI identity history. Reporting obligations also differ among professions and can depend on whether the form asks about an arrest, charge, admission, conviction, discipline, or any event that has ever occurred. The page on criminal defense and record consequences for licensed professionals addresses those profession-specific questions.

A Massachusetts criminal case arising from alleged domestic violence can create records in systems that criminal-record sealing does not control. The page on Massachusetts domestic-violence criminal records explains the difference between CORI and the statewide domestic-violence record-keeping system.

A vacated or expired 209A restraining order or 258E harassment prevention order can remain in the separate statewide domestic-violence record-keeping system. Removing a civil-order registry entry requires the distinct analysis described on the page about expunging a 209A restraining order or 258E harassment prevention order from the Massachusetts registry.

Common Questions About Federal Records and FBI Background Checks

Can a Massachusetts court order the FBI to remove a sealed or expunged record?

No. A Massachusetts court cannot directly order a federal agency to change its records. M.G.L. c. 276, § 100T requires Massachusetts to notify the FBI and request a corresponding change for the sealing and expungement orders identified in that statute. The FBI makes any federal correction under its own regulations and after verification from the agency that supplied the original information.

Will a sealed or expunged Massachusetts case still appear on an FBI background check?

A sealed or expunged Massachusetts case can appear on an FBI background check if the FBI file has not yet been updated. A person can obtain an FBI Identity History Summary under 28 C.F.R. § 16.32, compare it with the Massachusetts docket and order, and challenge inaccurate or incomplete information under 28 C.F.R. § 16.34.

How can I correct an FBI file that still reports an expunged Massachusetts record?

The person can submit an Identity History Summary Challenge under 28 C.F.R. § 16.34. The submission should include the FBI summary, a certified Massachusetts expungement order, the docket and disposition, and any state confirmation. The FBI then verifies the information with the contributing Massachusetts agency and corrects the federal entry when the agency confirms the change.

Can a federal criminal record be expunged in Massachusetts?

A Massachusetts court cannot expunge a federal case. Under United States v. Coloian, a federal court in the First Circuit also lacks jurisdiction to expunge an accurate federal record based solely on hardship or other equitable considerations. Section 3607(c) provides a narrow statutory expungement procedure for a limited group of young first-time simple-possession defendants. Correcting an inaccurate entry and obtaining a presidential pardon are different forms of relief, not federal expungement.

Does a clerk-magistrate hearing without an arrest create an FBI criminal-history entry?

No FBI entry arises merely from the complaint application or clerk-magistrate hearing. A clerk-magistrate hearing creates no FBI criminal-history entry when the matter begins without an arrest and no agency submits fingerprints. No complaint issues and no arraignment occurs if the clerk-magistrate denies the application. A denied application creates no CORI entry. A prior arrest or fingerprint submission requires separate review.

How Attorney Joe Serpa Handles Federal Record Questions

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He reviews the Massachusetts docket and disposition and identifies the state and federal records involved. He then determines whether the client needs a Massachusetts sealing or expungement petition, an FBI Identity History Summary Challenge, or advice about the consequences of a proposed disposition.

Attorney Serpa’s review helps licensed professionals, noncitizens, and college and university students whose applications or fingerprint checks may reveal state or federal information. The review can also identify a missing disposition, a federal file that has not reflected a Massachusetts order, or a separate record that state sealing does not cover.

The office can be reached at 617.936.0201.

The Courts and Agencies Involved

Massachusetts conviction-sealing requests proceed through the Commissioner of Probation. Petitions involving dismissals, nolle prosequi dispositions, and expungement proceed under the statute governing the disposition and requested relief. Serpa Law Office handles matters arising from the Massachusetts District Court, Boston Municipal Court, and Superior Court systems.

The FBI Criminal Justice Information Services Division handles federal identity-history challenges. Federal prosecutions in Massachusetts proceed in the United States District Court for the District of Massachusetts in Boston, Worcester, and Springfield. Appeals proceed in the United States Court of Appeals for the First Circuit.